Exhibit 10.2
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement"), dated as of May 15,
2002, is made by EACH OF THE UNDERSIGNED AND EACH OTHER PERSON WHO SHALL BECOME
A PARTY HERETO BE EXECUTION OF A GUARANTY JOINDER AGREEMENT (each a "Guarantor"
and collectively the "Guarantors") to BANK OF AMERICA, N.A., a national banking
association organized and existing under the laws of the United States, as
administrative agent (in such capacity, the "Administrative Agent") for each of
the Lenders (as defined in the Credit Agreement (as defined below) and
collectively with the Administrative Agent, the "Secured Parties") now or
hereafter party to the Credit Agreement. All capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such terms in the
Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Secured Parties have agreed to provide to Block
Communications, Inc., an Ohio corporation (the "Borrower") certain credit
facilities, including certain term loan facilities and a revolving credit
facility with a letter of credit and swing line sublimit pursuant to the terms
of that certain Credit Agreement dated as of May 15, 2002, among the Borrower,
the Administrative Agent and the Lenders (as from time to time amended, revised,
modified, supplemented, amended and restated or replaced, renewed, refunded or
refinanced, the "Credit Agreement"); and
WHEREAS, each Guarantor is, directly or indirectly, a Domestic Subsidiary
of the Borrower and will materially benefit from the Loans made and to be made,
and the Letters of Credit issued and to be issued, under the Credit Agreement;
and
WHEREAS, each Guarantor is required to enter into this Guaranty Agreement
pursuant to the terms of the Credit Agreement; and
WHEREAS, a material part of the consideration given in connection with and
as an inducement to the execution and delivery of the Credit Agreement by the
Secured Parties was the obligation of the Borrower to cause each Guarantor to
enter into this Guaranty Agreement, and the Secured Parties are unwilling to
extend and maintain the credit facilities provided under the Loan Documents
unless the Guarantors enter into this Guaranty Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
1. GUARANTY. Each Guarantor hereby jointly and severally, unconditionally,
absolutely, continually and irrevocably guarantees to the Administrative Agent
for the benefit of the Secured Parties the payment and performance in full of
the Borrower's Liabilities (as defined below). For all purposes of this Guaranty
Agreement, "Borrower's Liabilities" means: (a) the Borrower's prompt payment in
full, when due or declared due and at all such times, of all
Obligations and all other amounts pursuant to the terms of the Credit Agreement,
the Notes, and all other Loan Documents heretofore, now or at any time or times
hereafter owing, arising, due or payable from the Borrower to any one or more of
the Secured Parties, including principal, interest, premiums and fees
(including, but not limited to, loan fees and Attorney Costs); (b) the
Borrower's prompt, full and faithful performance, observance and discharge of
each and every agreement, undertaking, covenant and provision to be performed,
observed or discharged by the Borrower under the Credit Agreement and all other
Loan Documents; and (c) the Borrower's prompt payment in full, when due or
declared due and at all such times, of obligations and liabilities now or
hereafter arising under Related Swap Contracts. The Guarantors' obligations to
the Secured Parties under this Guaranty Agreement, including without limitation
any such obligations of a Joining Guarantor (as defined in the Guaranty Joinder
Agreement), are hereinafter collectively referred to as the "Guarantors'
Obligations" and, with respect to each Guarantor and Joining Guarantor
individually, the "Guarantor's Obligations". Notwithstanding the foregoing, the
liability of each Guarantor individually with respect to its Guarantor's
Obligations shall be limited to an aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provisions of
any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable (subject to the limitation in the immediately preceding
sentence) for the Borrower's Liabilities.
The Guarantors' Obligations are secured by various Security Instruments
referred to in the Credit Agreement, including without limitation the Pledge
Agreement (including the Pledge Joinder Agreements and the Pledge Agreement
Supplements), the Security Agreement (including the Security Joinder
Agreements), the IP Security Agreement (including the IP Security Joinder
Agreements), and all other agreements (including control agreements),
instruments and other documents, whether now existing or hereafter in effect,
pursuant to which the Borrower or any Subsidiary or other Person shall grant or
convey to the Administrative Agent or the Lenders a Lien in, or any other Person
shall acknowledge any such Lien in, property as security for all or any portion
of the Obligations or any other obligation under any Loan Document, as any of
them may be amended, modified, supplemented, amended and restated or replaced
from time to time.
2. PAYMENT. If the Borrower shall default in payment or performance of any
of the Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and Attorney Costs), or otherwise,
when and as the same shall become due, and after expiration of any applicable
grace period, whether according to the terms of the Credit Agreement, by
acceleration, or otherwise, or upon the occurrence and during the continuance of
any Event of Default under the Credit Agreement, then any or all of the
Guarantors will, upon demand thereof by the Administrative Agent, fully pay to
the Administrative Agent, for the benefit of the Secured Parties, subject to any
restriction on each Guarantor's Obligations set forth in Section 1 hereof, an
amount equal to all the Borrower's Liabilities then due and owing.
3. ABSOLUTE RIGHTS AND OBLIGATIONS. This is a guaranty of payment and not
of collection. The Guarantors' Obligations under this Guaranty Agreement shall
be joint and several, absolute and unconditional irrespective of, and each
Guarantor hereby expressly waives,
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to the extent permitted by law, any defense to its obligations under this
Guaranty Agreement and all Security Instruments to which it is a party by reason
of:
(a) any lack of legality, validity or enforceability of the Credit
Agreement, of any of the Notes, of any other Loan Document, or of any
other agreement or instrument creating, providing security for, or
otherwise relating to any of the Guarantors' Obligations, any of the
Borrower's Liabilities, or any other guaranty of any of the Borrower's
Liabilities (the Loan Documents and all such other agreements and
instruments being collectively referred to as the "Related Agreements");
(b) any action taken under any of the Related Agreements, any
exercise of any right or power therein conferred, any failure or omission
to enforce any right conferred thereby, or any waiver of any covenant or
condition therein provided;
(c) any acceleration of the maturity of any of the Borrower's
Liabilities, of the Guarantor's Obligations of any other Guarantor, or of
any other obligations or liabilities of any Person under any of the
Related Agreements;
(d) any release, exchange, non-perfection, lapse in perfection,
disposal, deterioration in value, or impairment of any security for any of
the Borrower's Liabilities, for any of the Guarantor's Obligations of any
Guarantor, or for any other obligations or liabilities of any Person under
any of the Related Agreements;
(e) any dissolution of the Borrower or any Guarantor or any other
party to a Related Agreement, or the combination or consolidation of the
Borrower or any Guarantor or any other party to a Related Agreement into
or with another entity or any transfer or disposition of any assets of the
Borrower or any Guarantor or any other party to a Related Agreement;
(f) any extension (including without limitation extensions of time
for payment), renewal, amendment, restructuring or restatement of, any
acceptance of late or partial payments under, or any change in the amount
of any borrowings or any credit facilities available under, the Credit
Agreement, any of the Notes or any other Loan Document or any other
Related Agreement, in whole or in part;
(g) the existence, addition, modification, termination, reduction or
impairment of value, or release of any other guaranty (or security
therefor) of the Borrower's Liabilities (including without limitation the
Guarantor's Obligations of any other Guarantor and obligations arising
under any other Facility Guaranty now or hereafter in effect);
(h) any waiver of, forbearance or indulgence under, or other consent
to any change in or departure from any term or provision contained in the
Credit Agreement, any other Loan Document or any other Related Agreement,
including without limitation any term pertaining to the payment or
performance of any of the Borrower's Liabilities,
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any of the Guarantor's Obligations of any other Guarantor, or any of the
obligations or liabilities of any party to any other Related Agreement;
(i) any other circumstance whatsoever (with or without notice to or
knowledge of any Guarantor) which may or might in any manner or to any
extent vary the risks of such Guarantor, or might otherwise constitute a
legal or equitable defense available to, or discharge of, a surety or a
guarantor other than the defense of full, strict and indefeasible payment
and performance (solely with respect to the amounts so paid and the
obligations so performed), including without limitation any right to
require or claim that resort be had to the Borrower or any other Loan
Party or to any collateral in respect of the Borrower's Liabilities or
Guarantors' Obligations.
It is the express purpose and intent of the parties hereto that this Guaranty
Agreement and the Guarantors' Obligations hereunder shall be absolute and
unconditional under any and all circumstances and shall not be discharged except
by payment as herein provided.
4. CURRENCY AND FUNDS OF PAYMENT. All Guarantors' Obligations will be paid
in lawful currency of the United States of America and in immediately available
funds, regardless of any law, regulation or decree now or hereafter in effect
that might in any manner affect the Borrower's Liabilities, or the rights of any
Secured Party with respect thereto as against the Borrower, or cause or permit
to be invoked any alteration in the time, amount or manner of payment by the
Borrower of any or all of the Borrower's Liabilities.
5. EVENTS OF DEFAULT. Without limiting the provisions of Section 2 hereof,
in the event that there shall occur and be continuing an Event of Default, then
notwithstanding any collateral or other security or credit support for the
Borrower's Liabilities, at the Administrative Agent's election and without
notice thereof or demand therefor, the Guarantors' Obligations shall immediately
be and become due and payable.
6. SUBORDINATION. Until this Guaranty Agreement is terminated in
accordance with Section 22 hereof, each Guarantor hereby unconditionally
subordinates all present and future debts, liabilities or obligations now or
hereafter owing to such Guarantor (i) of the Borrower, to the payment in full of
the Borrower's Liabilities, (ii) of every other Guarantor (an "obligated
guarantor"), to the payment in full of the Guarantors' Obligations of such
obligated guarantor, and (iii) of each other Person now or hereafter
constituting a Loan Party, to the payment in full of the obligations of such
Loan Party owing to any Secured Party and arising under the Loan Documents. All
amounts due under such subordinated debts, liabilities, or obligations shall,
upon the occurrence and during the continuance of an Event of Default, be
collected and, upon request by the Administrative Agent, paid over forthwith to
the Administrative Agent for the benefit of the Secured Parties on account of
the Borrower's Liabilities, the Guarantors' Obligations, or such other
obligations, as applicable, and, after such request and pending such payment,
shall be held by such Guarantor as agent and bailee of the Secured Parties
separate and apart from all other funds, property and accounts of such
Guarantor.
7. SUITS. Each Guarantor from time to time shall pay to the Administrative
Agent for the benefit of the Secured Parties, on demand, at the Administrative
Agent's place of
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business set forth in the Credit Agreement or such other address as the
Administrative Agent shall give notice of to such Guarantor, the Guarantors'
Obligations as they become or are declared due, and in the event such payment is
not made forthwith, the Administrative Agent may proceed to suit against any one
or more or all of the Guarantors. At the Administrative Agent's election, one or
more and successive or concurrent suits may be brought hereon by the
Administrative Agent against any one or more or all of the Guarantors, whether
or not suit has been commenced against the Borrower, any other Guarantor, or any
other Person and whether or not the Secured Parties have taken or failed to take
any other action to collect all or any portion of the Borrower's Liabilities or
have taken or failed to take any actions against any collateral securing payment
or performance of all or any portion of the Borrower's Liabilities, and
irrespective of any event, occurrence, or condition described in Section 3
hereof.
8. SET-OFF AND WAIVER. Each Guarantor waives any right to assert against
any Secured Party as a defense, counterclaim, set-off, recoupment or cross claim
in respect of its Guarantor's Obligations, any defense (legal or equitable) or
other claim which such Guarantor may now or at any time hereafter have against
the Borrower or any or all of the Secured Parties without waiving any additional
defenses, set-offs, counterclaims or other claims otherwise available to such
Guarantor. Each Guarantor agrees that each Secured Party shall have a lien for
all the Guarantor's Obligations upon all deposits or deposit accounts, of any
kind, or any interest in any deposits or deposit accounts, now or hereafter
pledged, mortgaged, transferred or assigned to such Secured Party or otherwise
in the possession or control of such Secured Party for any purpose (other than
solely for safekeeping) for the account or benefit of such Guarantor, including
any balance of any deposit account or of any credit of such Guarantor with the
Secured Party, whether now existing or hereafter established, and hereby
authorizes each Secured Party from and after the occurrence of an Event of
Default at any time or times with or without prior notice to apply such balances
or any part thereof to such of the Guarantor's Obligations to the Secured
Parties then due and in such amounts as provided for in the Credit Agreement or
otherwise as they may elect. For the purposes of this Section 8, all remittances
and property shall be deemed to be in the possession of a Secured Party as soon
as the same may be put in transit to it by mail or carrier or by other bailee.
9. WAIVER OF NOTICE; SUBROGATION.
(a) Each Guarantor hereby waives to the extent permitted by law
notice of the following events or occurrences: (i) acceptance of this
Guaranty Agreement; (ii) the Lenders' heretofore, now or from time to time
hereafter making Loans and issuing Letters of Credit and otherwise loaning
monies or giving or extending credit to or for the benefit of the
Borrower, whether pursuant to the Credit Agreement or the Notes or any
other Loan Document or Related Agreement or any amendments, modifications,
or supplements thereto, or replacements or extensions thereof; (iii)
presentment, demand, default, non-payment, partial payment and protest;
and (iv) any other event, condition, or occurrence described in Section 3
hereof. Each Guarantor agrees that each Secured Party may heretofore, now
or at any time hereafter do any or all of the foregoing in such manner,
upon such terms and at such times as each Secured Party, in its sole and
absolute discretion, deems advisable, without in any way or respect
impairing, affecting, reducing
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or releasing such Guarantor from its Guarantor's Obligations, and each
Guarantor hereby consents to each and all of the foregoing events or
occurrences.
(b) Each Guarantor hereby agrees that payment or performance by such
Guarantor of its Guarantor's Obligations under this Guaranty Agreement may
be enforced by the Administrative Agent on behalf of the Secured Parties
upon demand by the Administrative Agent to such Guarantor without the
Administrative Agent being required, such Guarantor expressly waiving to
the extent permitted by law any right it may have to require the
Administrative Agent, to (i) prosecute collection or seek to enforce or
resort to any remedies against the Borrower or any other Guarantor or any
other guarantor of the Borrower's Liabilities, or (ii) seek to enforce or
resort to any remedies with respect to any security interests, Liens or
encumbrances granted to the Administrative Agent or any Lender or other
party to a Related Agreement by the Borrower, any other Guarantor or any
other Person on account of the Borrower's Liabilities or any guaranty
thereof, IT BEING EXPRESSLY UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH
GUARANTOR THAT DEMAND UNDER THIS GUARANTY AGREEMENT MAY BE MADE BY THE
ADMINISTRATIVE AGENT, AND THE PROVISIONS HEREOF ENFORCED BY THE
ADMINISTRATIVE AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT
OCCURS AND IS CONTINUING UNDER THE CREDIT AGREEMENT.
(c) Each Guarantor further agrees with respect to this Guaranty
Agreement that it shall have no right of subrogation, reimbursement,
contribution or indemnity, nor any right of recourse to security for the
Borrower's Liabilities unless and until 93 days immediately following the
Facility Termination Date (as defined below) shall have elapsed without
the filing or commencement, by or against any Loan Party, of any state or
federal action, suit, petition or proceeding seeking any reorganization,
liquidation or other relief or arrangement in respect of creditors of, or
the appointment of a receiver, liquidator, trustee or conservator in
respect to, such Loan Party or its assets. This waiver is expressly
intended to prevent the existence of any claim in respect to such
subrogation, reimbursement, contribution or indemnity by any Guarantor
against the estate of any other Loan Party within the meaning of Section
101 of the Bankruptcy Code, in the event of a subsequent case involving
any other Loan Party. If an amount shall be paid to any Guarantor on
account of such rights at any time prior to termination of this Guaranty
Agreement in accordance with the provisions of Section 22 hereof, such
amount shall be held in trust for the benefit of the Secured Parties and
shall forthwith be paid to the Administrative Agent, for the benefit of
the Secured Parties, to be credited and applied upon the Guarantors'
Obligations, whether matured or unmatured, in accordance with the terms of
the Credit Agreement or otherwise as the Secured Parties may elect. The
agreements in this subsection shall survive repayment of all of the
Guarantors' Obligations, the termination or expiration of this Guaranty
Agreement in any manner, including but not limited to termination in
accordance with Section 22 hereof, and occurrence of the Facility
Termination Date. For purposes of this Guaranty Agreement, "Facility
Termination Date" means the date as of which all of the following shall
have occurred: (a) the Borrower shall have permanently terminated the
credit facilities under
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the Loan Documents by final payment in full of all Outstanding Amounts,
together with all accrued and unpaid interest and fees thereon, other than
(i) the undrawn portion of Letters of Credit and (ii) all letter of credit
fees relating thereto accruing after such date (which fees shall be
payable solely for the account of the L/C Issuer and shall be computed
(based on interest rates then in effect) on such undrawn amounts to the
respective expiry dates of the Letters of Credit), in each case as have
been fully Cash Collateralized or as to which other arrangements with
respect thereto satisfactory to the Administrative Agent and the L/C
Issuer shall have been made; (b) all Related Swap Contracts shall have
been terminated, expired or Cash Collateralized; (c) all Commitments shall
have terminated or expired; and (d) the Borrower and each other Loan Party
shall have fully, finally and irrevocably paid and satisfied in full all
of their respective obligations and liabilities arising under the Loan
Documents, including with respect to the Borrower and its Obligations
(except for future Obligations consisting of continuing indemnities and
other contingent Obligations of the Borrower or any Loan Party that may be
owing to any Agent-Related Person or any Lender pursuant to the Loan
Documents and expressly survive termination of the Credit Agreement).
10. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date first above written and shall continue in full force
and effect until termination in accordance with Section 22 hereof. Any claim or
claims that the Secured Parties may at any time hereafter have against a
Guarantor under this Guaranty Agreement may be asserted by the Administrative
Agent on behalf of the Secured Parties by written notice directed to such
Guarantor in accordance with Section 24 hereof.
11. REPRESENTATIONS AND WARRANTIES. Each Guarantor warrants and represents
to the Administrative Agent, for the benefit of the Secured Parties, that it is
duly authorized to execute and deliver this Guaranty Agreement (or the Guaranty
Joinder Agreement to which it is a party, as applicable), and to perform its
obligations under this Guaranty Agreement, that this Guaranty Agreement (or the
Guaranty Joinder Agreement to which it is a party, as applicable) has been duly
executed and delivered on behalf of such Guarantor by its duly authorized
representatives; that this Guaranty Agreement (and any Guaranty Joinder
Agreement to which such Guarantor is a party) is legal, valid, binding and
enforceable against such Guarantor in accordance with its terms except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles; and that such Guarantor's
execution, delivery and performance of this Guaranty Agreement (and any Guaranty
Joinder Agreement to which such Guarantor is a party) do not violate or
constitute a breach of any of its Organizational Documents, any agreement or
instrument to which such Guarantor is a party, or any law, order, regulation,
decree or award of any governmental authority or arbitral body to which it or
its properties or operations is subject.
12. EXPENSES. Each Guarantor agrees to be jointly and severally liable for
the payment of all reasonable fees and expenses, including Attorney Costs,
incurred by any Secured Party in connection with the enforcement of this
Guaranty Agreement, whether or not suit be brought.
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13. REINSTATEMENT. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by any Secured Party in respect of any Borrower's Liabilities
is rescinded or must be restored for any reason, or is repaid by any Secured
Party in whole or in part in good faith settlement of any pending or threatened
avoidance claim.
14. ATTORNEY-IN-FACT. To the extent permitted by law, each Guarantor
hereby appoints the Administrative Agent, for the benefit of the Secured
Parties, as such Guarantor's attorney-in-fact for the purposes of carrying out
the provisions of this Guaranty Agreement and taking any action and executing
any instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes hereof, which appointment is coupled with an interest
and is irrevocable; provided, that the Administrative Agent shall have and may
exercise rights under this power of attorney only upon the occurrence and during
the continuance of an Event of Default.
15. RELIANCE. Each Guarantor represents and warrants to the Administrative
Agent, for the benefit of the Secured Parties, that: (a) such Guarantor has
adequate means to obtain on a continuing basis (i) from the Borrower,
information concerning the Borrower and the Borrower's financial condition and
affairs and (ii) from other reliable sources, such other information as it deems
material in deciding to provide this Guaranty Agreement and any Guaranty Joinder
Agreement ("Other Information"), and has full and complete access to the
Borrower's books and records and to such Other Information; (b) such Guarantor
is not relying on any Secured Party or its or their employees, directors, agents
or other representatives or Affiliates, to provide any such information, now or
in the future; (c) such Guarantor has been furnished with and reviewed the terms
of the Credit Agreement and such other Loan Documents as it has requested, is
executing this Guaranty Agreement (or the Guaranty Joinder Agreement to which it
is a party, as applicable) freely and deliberately, and understands the
obligations and financial risk undertaken by providing this Guaranty Agreement
(and any Guaranty Joinder Agreement); (d) such Guarantor has relied solely on
the Guarantor's own independent investigation, appraisal and analysis of the
Borrower, the Borrower's financial condition and affairs, the "Other
Information", and such other matters as it deems material in deciding to provide
this Guaranty Agreement (and any Guaranty Joinder Agreement) and is fully aware
of the same; and (e) such Guarantor has not depended or relied on any Secured
Party or its or their employees, directors, agents or other representatives or
Affiliates, for any information whatsoever concerning the Borrower or the
Borrower's financial condition and affairs or any other matters material to such
Guarantor's decision to provide this Guaranty Agreement (and any Guaranty
Joinder Agreement), or for any counseling, guidance, or special consideration or
any promise therefor with respect to such decision. Each Guarantor agrees that
no Secured Party has any duty or responsibility whatsoever, now or in the
future, to provide to such Guarantor any information concerning the Borrower or
the Borrower's financial condition and affairs, or any Other Information, other
than as expressly provided herein, and that, if such Guarantor receives any such
information from any Secured Party or its or their employees, directors, agents
or other representatives or Affiliates, such Guarantor will independently verify
the information and will not rely on any Secured Party or its or their
employees, directors, agents or other representatives or Affiliates, with
respect to such information.
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16. RULES OF INTERPRETATION. The rules of interpretation contained in
Sections 1.02 and 1.05 of the Credit Agreement shall be applicable to this
Guaranty Agreement and each Guaranty Joinder Agreement and are hereby
incorporated by reference. All representations and warranties contained herein
shall survive the delivery of documents and any extension of credit referred to
herein or guaranteed hereby.
17. ENTIRE AGREEMENT. This Guaranty Agreement and each Guaranty Joinder
Agreement, together with the Credit Agreement and other Loan Documents,
constitutes and expresses the entire understanding between the parties hereto
with respect to the subject matter hereof, and supersedes all prior
negotiations, agreements, understandings, inducements, commitments or
conditions, express or implied, oral or written, except as herein contained. The
express terms hereof control and supersede any course of performance or usage of
the trade inconsistent with any of the terms hereof. Except as provided in
Section 22, neither this Guaranty Agreement nor any Guaranty Joinder Agreement
nor any portion or provision hereof or thereof may be changed, altered,
modified, supplemented, discharged, canceled, terminated, or amended orally or
in any manner other than as provided in the Credit Agreement.
18. BINDING AGREEMENT; ASSIGNMENT. This Guaranty Agreement, each Guaranty
Joinder Agreement and the terms, covenants and conditions hereof and thereof,
shall be binding upon and inure to the benefit of the parties hereto and
thereto, and to their respective heirs, legal representatives, successors and
assigns; provided, however, that no Guarantor shall be permitted to assign any
of its rights, powers, duties or obligations under this Guaranty Agreement, any
Guaranty Joinder Agreement or any other interest herein or therein without the
prior written consent of the Administrative Agent. Without limiting the
generality of the foregoing sentence of this Section 18, any Lender may assign
to one or more Persons, or grant to one or more Persons participations in or to,
all or any part of its rights and obligations under the Credit Agreement (to the
extent permitted by the Credit Agreement); and to the extent of any such
assignment or participation such other Person shall, to the fullest extent
permitted by law, thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or otherwise, subject however, to the
provisions of the Credit Agreement, including Article IX thereof (concerning the
Administrative Agent) and Section 10.07 thereof concerning assignments and
participations. All references herein to the Administrative Agent shall include
any successor thereof. Notwithstanding the foregoing, nothing in this Section 18
is intended to preclude any merger between or among two or more Guarantors or
between or among the Borrower and one or more Guarantors to the extent otherwise
permitted under the Credit Agreement.
19. RELATED SWAP CONTRACTS. All obligations of the Borrower under Related
Swap Contracts to which any Lender or its Affiliates are a party shall be deemed
to be Borrower's Liabilities, and each Lender or Affiliate of a Lender party to
any such Related Swap Contract shall be deemed to be a Secured Party hereunder
with respect to such Borrower's Liabilities; provided, however, that such
obligations shall cease to be Borrower's Liabilities at such time as such Person
(or Affiliate of such Person) shall cease to be a "Lender" under the Credit
Agreement.
No Person who obtains the benefit of this Guaranty Agreement by virtue of
the provisions of this Section shall have any right to notice of any action or
to consent to, direct or
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object to any action hereunder or under any other Loan Document or otherwise in
respect of the Guarantors' Obligations (including the release or modification of
any Guarantors' Obligations or security therefor) other than in its capacity as
a Lender and only to the extent expressly provided in the Loan Documents.
20. SEVERABILITY. The provisions of this Guaranty Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Guaranty Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
21. COUNTERPARTS. This Guaranty Agreement may be executed in any number of
counterparts each of which when so executed and delivered shall be deemed an
original, all of which together shall constitute one and the same instrument,
and it shall not be necessary in making proof of this Guaranty Agreement to
produce or account for more than one such counterpart executed by the Guarantor
against whom enforcement is sought. Without limiting the foregoing provisions of
this Section 21, the provisions of Section 10.02(b) of the Credit Agreement
shall be applicable to this Guaranty Agreement.
22. TERMINATION.
(a) Subject to reinstatement pursuant to Section 13 hereof, this Guaranty
Agreement and each Guaranty Joinder Agreement, and all of the Guarantors'
Obligations hereunder (excluding those obligations and liabilities that
expressly survive such termination) shall terminate on the Facility Termination
Date.
(b) In the event that all of the Subsidiary Securities issued by any
Guarantor are Disposed of by the Borrower and/or any Guarantor, and such
Disposition is expressly permitted by the Credit Agreement, then all obligations
of such disposed Guarantor hereunder (excluding those obligations and
liabilities that expressly survive such termination) shall terminate without
delivery of any instrument or performance of any act by any party, and the
Administrative Agent shall, at the request and sole expense of the Guarantors,
promptly deliver such termination statements and take such further actions as
may reasonably be requested to terminate of record, or otherwise to give
appropriate notice of the termination of, any Lien conferred hereunder with
respect to such disposed Guarantor.
23. REMEDIES CUMULATIVE; LATE PAYMENTS. All remedies hereunder are
cumulative and are not exclusive of any other rights and remedies of the
Administrative Agent or any other Secured Party provided by law or under the
Credit Agreement, the other Loan Documents or other applicable agreements or
instruments. The making of the Loans and other Credit Extensions pursuant to the
Credit Agreement shall be conclusively presumed to have been made or extended,
respectively, in reliance upon each Guarantor's guaranty of the Borrower's
Liabilities pursuant to the terms hereof. Any amounts not paid when due under
this Guaranty Agreement shall bear interest at the Default Rate.
10
24. NOTICES. Any notice required or permitted hereunder or under any
Guaranty Joinder Agreement shall be given, (a) with respect to each Guarantor,
at the address for such Guarantor set forth below its signature on this Guaranty
Agreement or the Guaranty Joinder Agreement of such Guarantor, as applicable and
(b) with respect to the Administrative Agent or any other Secured Party, at the
Administrative Agent's address indicated in Schedule 10.02 of the Credit
Agreement. All such addresses may be modified, and all such notices shall be
given and shall be effective, as provided in Section 10.02 of the Credit
Agreement for the giving and effectiveness of notices and modifications of
addresses thereunder.
25. JOINDER. Each Person who shall at any time execute and deliver to the
Administrative Agent a Guaranty Joinder Agreement substantially in the form
attached as Exhibit A hereto shall thereupon irrevocably, absolutely and
unconditionally become a party hereto and obligated hereunder as a Guarantor,
and all references herein and in the other Loan Documents to the Guarantors or
to the parties to this Guaranty Agreement shall be deemed to include such Person
as a Guarantor hereunder.
26. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.
(a) THIS GUARANTY AGREEMENT AND EACH GUARANTY JOINDER AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY
PERFORMED, IN SUCH STATE.
(b) EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS GUARANTY AGREEMENT OR ANY GUARANTY JOINDER AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN MAY BE INSTITUTED IN ANY STATE
OR FEDERAL COURT SITTING IN THE COUNTY OF NEW YORK, STATE OF NEW YORK,
UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
GUARANTY AGREEMENT OR A GUARANTY JOINDER AGREEMENT, SUCH GUARANTOR
EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS FOR NOTICES TO SUCH
11
GUARANTOR IN EFFECT PURSUANT TO SECTION 24 HEREOF, OR BY ANY OTHER METHOD
OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE
OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF SHALL
PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR ANY
GUARANTY JOINDER AGREEMENT OR ANY OTHER LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE ANY GUARANTOR OR ANY OF SUCH GUARANTOR'S PROPERTY OR
ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE
LAWS OF ANY SUCH JURISDICTION, EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF
ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE OF
JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS
WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO THIS GUARANTY AGREEMENT OR ANY GUARANTY
JOINDER AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH,
EACH GUARANTOR AND THE ADMINISTRATIVE AGENT ON BEHALF OF THE SECURED
PARTIES HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY
SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT ANY SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY
SUCH ACTION, SUIT OR PROCEEDING.
(f) EACH GUARANTOR HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE
THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE
TERMS HEREOF IS AN INCONVENIENT FORUM.
[SIGNATURE PAGES FOLLOW.]
12
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Guaranty Agreement as of the day and year first written above.
GUARANTORS:
BUCKEYE CABLEVISION, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Chairman
------------------------------------
ERIE COUNTY CABLEVISION, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Chairman
------------------------------------
BUCKEYE TELESYSTEMS, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Chairman
------------------------------------
CORPORATE PROTECTION SERVICES, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Chairman
------------------------------------
COMMUNITY COMMUNICATION SERVICES, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Vice President
------------------------------------
Guaranty Agreement
Signature Page 1
PG PUBLISHING COMPANY
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Vice President
------------------------------------
MONROE CABLEVISION, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Chairman
------------------------------------
LIMA COMMUNICATIONS CORPORATION
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Chairman
------------------------------------
WLFI-TV, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: President
------------------------------------
INDEPENDENCE TELEVISION COMPANY
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Chairman
------------------------------------
Guaranty Agreement
Signature Page 2
TOLEDO AREA TELECOMMUNICATIONS SERVICES, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Vice President
------------------------------------
METRO FIBER & CABLE CONSTRUCTION COMPANY
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Vice President
------------------------------------
IDAHO INDEPENDENT TELEVISION, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Chairman
------------------------------------
CARS HOLDING, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: President
------------------------------------
ACCESS TOLEDO, LTD.
By: BLOCK COMMUNICATIONS, INC.
By: /s/ Allan J. Block
------------------------------------
Name: Allan J. Block
------------------------------------
Title: Vice President
------------------------------------
Guaranty Agreement
Signature Page 3
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A.
By: /s/ Derrick C. Bell
------------------------------------
Name: Derrick C. Bell
------------------------------------
Title: Principal
------------------------------------
Guaranty Agreement
Signature Page 4
EXHIBIT A
FORM OF GUARANTY JOINDER AGREEMENT
GUARANTY JOINDER AGREEMENT
THIS GUARANTY JOINDER AGREEMENT (the "Guaranty Joinder Agreement"), dated
as of _____________, 20__ is made by and between
_______________________________, a ________________ (the "Joining Guarantor"),
and BANK OF AMERICA, N.A., in its capacity as Administrative Agent (the
"Administrative Agent") under that certain Credit Agreement (as from time to
time amended, revised, modified, supplemented, amended and restated or replaced,
renewed, refunded or refinanced, the "Credit Agreement") dated as of May 15,
2002, by and among Block Communications, Inc., an Ohio corporation (the
"Borrower"), the Administrative Agent and the Lenders (as defined in the Credit
Agreement) from time to time party thereto. All capitalized terms not otherwise
defined herein shall have the meanings given to such terms in the Credit
Agreement.
WHEREAS, the Joining Guarantor is a Domestic Subsidiary and required by
the terms of the Credit Agreement to become a "Guarantor" under the Credit
Agreement and be joined as a party to that certain Guaranty Agreement dated as
of May 15, 2002 by and among the Administrative Agent and certain Subsidiaries
of the Borrower (as from time to time amended, revised, modified, supplemented,
amended and restated or replaced, renewed, refunded or refinanced, the "Guaranty
Agreement"); and
WHEREAS, the Joining Guarantor will materially benefit directly and
indirectly from the credit facilities made available and to be made available to
the Borrower by the Lenders under the Credit Agreement;
NOW, THEREFORE, the Joining Guarantor hereby agrees as follows with the
Administrative Agent, for the benefit of the Secured Parties (as defined in the
Guaranty Agreement and including any Lender or Affiliate of any Lender party to
a Related Swap Contract):
1. JOINDER. The Joining Guarantor hereby irrevocably, absolutely and
unconditionally becomes a party to the Guaranty Agreement as a Guarantor and is
bound by all the terms, conditions, obligations, liabilities and undertakings of
each Guarantor or to which each Guarantor is subject thereunder, including
without limitation the joint and several, unconditional, absolute, continuing
and irrevocable guarantee to the Administrative Agent for the benefit of the
Secured Parties of the payment and performance in full of the Borrower's
Liabilities (as defined in the Guaranty Agreement) whether now existing or
hereafter arising, and all references to "Guarantors' Obligations" and
"Guarantor's Obligations" as used in the Guaranty Agreement shall fully and
completely include such guarantee, obligations, liabilities and undertakings of
the Joining Guarantor hereunder, all with the same force and effect as if the
Joining Guarantor were a signatory to the Guaranty Agreement.
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2. AFFIRMATIONS. The Joining Guarantor hereby acknowledges and reaffirms
as of the date hereof with respect to itself, its properties and its affairs
each of the waivers, representations, warranties, acknowledgements and
certifications applicable to any Guarantor contained in the Guaranty Agreement.
3. SEVERABILITY. The provisions of this Guaranty Joinder Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or unenforceable, such invalidity or unenforceability
shall not affect the validity or enforceability of any other provision hereof,
but this Guaranty Joinder Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
4. COUNTERPARTS. This Guaranty Joinder Agreement may be executed in any
number of counterparts each of which when so executed and delivered shall be
deemed an original, and it shall not be necessary in making proof of this
Guaranty Joinder Agreement to produce or account for more than one such
counterpart executed by the Joining Guarantor. Without limiting the foregoing
provisions of this Section 4, the provisions of Section 10.02(b) of the Credit
Agreement shall be applicable to this Guaranty Joinder Agreement.
5. DELIVERY. The Joining Guarantor hereby irrevocably waives notice of
acceptance of this Guaranty Joinder Agreement and acknowledges that the
Borrower's Liabilities are and shall be deemed to be incurred, and credit
extensions under the Loan Documents made and maintained, in reliance on this
Guaranty Joinder Agreement and the Guarantor's joinder as a party to the
Guaranty Agreement as herein provided.
6. GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL. The provisions of Section
26 of the Guaranty Agreement are hereby incorporated by reference as if fully
set forth herein.
IN WITNESS WHEREOF, the Joining Guarantor has duly executed and delivered
this Guaranty Joinder Agreement as of the day and year first written above.
JOINING GUARANTOR:
------------------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
[Address for Notices:
------------------------------------------
------------------------------------------
------------------------------------------
Telefacsimile: (---) --- - ----]
[Complete if Borrower's address is not to be used
pursuant to Section 24 of the Guaranty]
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